Johnson v State

Johnson v State
1928 OK CR 278
269 P. 785
41 Okl.Cr. 13
Decided: 09/01/1928
Oklahoma Court of Criminal Appeals

(Syllabus.)

Continuance Refusal of Continuance to Prepare for Trial Held Abuse

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of Discretion. Held that, under the facts shown, the refusal to grant a reasonable postponement of the trial was an abuse of discretion, requiring a reversal.

Appeal from County Court, McCurtain County; T.G. Carr, Judge.

George Johnson and another were convicted of transporting whisky, and they appeal. Reversed and remanded.

J.N. Fortner and W.A. Carter, for plaintiffs in error.

Edwin Dabney, Atty. Gen., for the State.

PER CURIAM. The plaintiffs in error, hereinafter called defendants, were convicted in the county court of McCurtain county on a charge of transporting whisky, and were each sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that at the time charged a federal prohibition officer saw defendants driving on the highway, and that he turned his car across the road for the purpose of stopping them, and that he saw one of them throw a half gallon jar of whisky out of the car and break it. He did not arrest them, but a few days later a state officer filed a complaint. Only one witness as to the facts was called by the state. Each of the defendants testifies that they were stopped by the federal officer as testified. Both denied that they had possession of any whisky or that they threw anything from the car. Before going into trial, defendant Abercrombie filed an affidavit praying for a continuance on account of the illness of his married daughter who lived with him, stating that she was ill at his home, that on the day before the trial her child had been buried, and that on account of this the defendant Abercrombie had been unable to prepare for

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